Key Amendments to the Kazakhstan Labour Code and Other Labour-related Legislative Acts
Key Amendments to the Kazakhstan Labour Code and Other Labour-related Legislative Acts
On 4 May 2020, Kazakhstan adopted a law [Law of the Republic of Kazakhstan Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Labour Matters No. 321-VI of 4 May 2020] introducing a number of amendments to the Kazakhstan Labour Code and other labour-related legislative acts.
In view of the latest developments, Sayat Zholshy & Partners is offering below a selection of key novelties that might pique your interest:
1. The definition of “disciplinary offence” has been extended and, from now on, it means a wrongful and culpable nonperformance or improper performance of the employee’s duties and a breach of workplace discipline. Hence, for an employee’s wrongdoing to be qualified as a disciplinary offence, such wrongdoing must be unlawful (i.e. violation of a statutory ban or nonperformance of an obligation to pursue certain actions) and culpable (i.e. wilful or negligent misconduct).
Article 1(76) of the Labour Code
2. Now an employer may, at their sole discretion, issue orders either in paper or electronic form certified by their electronic digital signature.
Article 11.2 of the Labour Code
3. The employee representation standards have undergone certain changes. In particular, when professional trade union membership of a company’s staff is below fifty percent, such company’s staff may be represented by the professional trade unions and elected representatives. Besides, the employer and employee are prohibited from collective bargaining without the respective trade union present, provided that the organisation has a trade union.
Article 20.1 of the Labour Code
4. The employer representation standards have also undergone a number of changes. For example, from now on, the employers’ rights and interests must be safeguarded by associations/unions of employers through social partnership.
Article 20-1 of the Labour Code
5. Due to a number of practical issues with the formation of a conciliation commission, the legislator has explicitly imposed such obligation on the employer. Now all employers, with few exceptions, must form a conciliation commission in their organisation.
Article 2(26) of the Labour Code
6. The pilot mode of the uniform contract labour accounting system is completed; therefore, from now on, involvement in such system is mandatory, meaning that employers must enter into the system all information about their newly signed employment contracts, terminated employment contracts, as well as any amendments thereto.
Employment contracts may be executed and amended in electronic form certified by the employer’s electronic digital signature.
Article 23.2(27) and Article 33.1 of the Labour Code
7. In response to the recent disturbance and frustration over job discrimination, the legislator has decided to extend the employers’ responsibility. Now an employer must guarantee to their employees not only the right to equal work for equal pay, but also the right to equal work and life conditions free from any discrimination, where the term “work and life conditions” is defined as a physical working environment suitable for an employee to stay in the workplace (including under a rotation system), in particular, the availability of sanitary facilities and amenities, as well as leisure and refreshment spaces.
The set of elements of an administrative labour-related offence has been adjusted accordingly.
Article 1.1(66-1) and Article 23.2(28) of the Labour Code, and Article 90.1 of the Code of Administrative Offences
8. The list of banned occupations for women set out in the prior version of the Labour Code has been replaced in the new Labour Code with the list of restricted occupations for women. Now an employer may, at their sole discretion, employ a woman in a listed occupation, provided that all occupation safety requirements are met and verified through an appropriate industrial facility work conditions certification process.
Article 26.2(4) of the Labour Code
9. The notion of employee secondment has been also revised. As a result, an employee may be assigned not only to another independent corporate entity but also to a branch, representative office and/or another economically autonomous structural subdivision of the employer, as well as the so-called sister companies thereof, i.e. the legal entities in which shares/interests are, either directly or indirectly, held by direct or indirect shareholders/interestholders of the employer.
The amended Labour Code provides for the circumstances under which an employer may not second an employee for the purpose of replacing the receiving party’s employees who refuse to perform work; for the performance of works during downtime; for the performance of bankruptcy procedure in relation to the receiving party; and when the receiving party transitions to part-time work in order to retain jobs instead of downsizing.
Article 40 of the Labour Code
10. The procedure for temporary transfer of employees to other jobs for health reasons has been slightly changed. In particular, from now on, the employer is obliged to transfer an employee, on a temporary basis, not to an “easier job” but to a “job that is not against medical advice for health reasons”.
Article 43 of the Labour Code
11. The procedure for temporary transfer of pregnant women to other jobs has also undergone certain changes. Under the amended Labour Code, upon transfer of a pregnant woman to another job, instead of getting her average salary she is paid for actually performed work, provided that such pay is not below her average salary in the previous job.
Besides, the new Labour Code provides for the employer’s obligation to transfer, on a temporary basis, a pregnant woman working rotating shifts to a regular 5-day or 6-day working week, subject to the confirmation of at least 12-week pregnancy, and to pay her for performed work in amounts equal to or higher than her average salary in the previous job.
Article 44 of the Labour Code
12. The procedure for relocation of employees has been changed in such a way that, from now on, an employee may be relocated without their consent, provided that the amounts and terms of their remuneration set out in the relevant employment contract do not change.
Article 45 of the Labour Code
13. Under the amended Labour Code, an unlawfully suspended employee continues to receive not only their salary but also temporary disability benefits and other allowances provided for by Kazakhstan regulatory legal acts, employment contracts, collective agreements and employer’s orders.
Article 48.6 of the Labour Code
14. The amendments have excluded the possibility for an employment contract to provide for the employer’s right to terminate the employment contract subject to compensation the amount of which is determined by the employment contract. The wording of this provision was ambiguous and triggered numerous disputes and discussions. Some employers tried to avoid the provision which gave rise to many legal precedents. Nevertheless, such Labour Code provision remarkably facilitated the termination of employment contracts on the part of employers. And now, employers will have to proceed with caution when terminating employment contracts.
Article 50.3 of the Labour Code
15. Henceforth, the term of an employment contract executed for a period of temporary replacement will be deemed expired not only upon return of the replaced employee (who retained their position), but also upon termination of the replaced employee’s contract, in which case the employer will have to sign a new employment contract with the replacing employee.
Article 51.4 of the Labour Code
16. The mechanism of employment contract termination due to the loss of trust and confidence in the employee has been altered to enable the employer to terminate the employment contract with the employee guilty of culpable acts or omissions, if such employee deals with monetary or merchandise values and uses their position in their own interests or the interests of a third party contrary to the interests of the employer in exchange for certain material or other benefits for themselves or other people, provided that such acts or omissions provide reasons enough to lose the employer’s trust and confidence in the employee.
Besides, the termination of an employment contract for the aforementioned reasons does not require the observance of disciplinary procedures, although the employer has to execute an internal investigation report providing the evidence of the employee’s culpable acts or omissions.
Article 52.1(13), Article 53.6 and Article 53.7-2 of the Labour Code
17. The amended legislation provides for the employee’s option to unilaterally withdraw a notice of employment contract termination.
Article 56.4 of the Labour Code
18. The list of circumstances not allowing the employer to take a disciplinary action against an employee has been extended with the mandatory investigation of a workplace incident in relation to the employees violating safety and health regulations for the period of which the disciplinary action must be suspended.
Article 65.4(5) and Article 66.3(7) of the Labour Code
19. The 7-hour limitation of the working day of employees with the 1stand 2nddegree disabilities has been lifted.
Article 69.3(2) of the Labour Code
20. The list of employees falling into part-time employment patterns subject to their written application has been extended with the employees who are taking care of family members with medically certified disabilities.
Article 70.3 of the Labour Code
21. The exception allowing an employer to make its employees working under shift/rotating patterns work on days-off and public holidays without their prior written consent has been abolished. From now on, such employees may be involved in the performance of works on days-off and public holidays only subject to their prior written consent in accordance with the standard procedure.
Article 85.1(2) of the Labour Code
22. The list of grounds on which an employer must grant an employee an unpaid leave of absence for a period of up to five calendar days has been extended with such ground as the death of a spouse and/or in-law relative (i.e. full-blood and half-blood siblings, parent(s), children, grandparent(s) and grandchildren).
Article 97.3(3) of the Labour Code
23. In response to numerous questions and controversies, the legislator has explicitly provided that when a night shift overlaps a public holiday or day-off, the work performed during night hours and the work during such public holiday or day-off must be paid separately.
Article 110.2 of the Labour Code
24. The amended Labour Code provides for the employee’s right to refuse to do extra work and the employer’s right to call off the request to do such extra work which may be exercised by way of written notification of the other party at least three business days in advance. When the employee refuses to complete the started extra work or the employer calls off the request to complete such extra work, the employer must pay the employee for the completed part of the extra work.
Article 111.4 of the Labour Code
25. Henceforth, employers will be charged penalties not only for delays in the payment of salary to employees but also for delays in the payment of benefits due upon termination of employment contracts.
Article 113.4(2) of the Labour Code
26. The legislator has revised the guarantees to employees going on compulsory or active duty military leave. From now on, such employees will be allowed to hold their job/position and stay on a payroll for the period of physical evaluation subject to an appropriate military subpoena, and to hold their job/position for the period of their compulsory or active duty military leave.
The employee whose position was secured for the period of compulsory or active duty military leave must, within one month from the date of their release from active duty or transfer to the reserve force, commence the performance of their employment duties.
Article 124.3 of the Labour Code
27. The list of short-term disabilities not covered by social security has been extended with the short-term disabilities overlapping a leave of absence or three-year parental leave.
Article 133.4(6) and Article 133.4(7) of the Labour Code
28. The employer’s obligations to rotational employees have been clarified as follows:
The employer must ensure the transportation of rotational employees from the pick-up point to the place of work and backwards. For comparison, according to the literal interpretation of the previous wording, the employer was obliged to transport rotational employees to and from work only when they were on site.
Now the employer must provide appropriate living conditions for rotational employees not only on site but also in rotational camps.
The employee on duty, in turn, must observe the order established by the employer on the site and in the rotational camp.
Article 135.2 of the Labour Code
29. Henceforth, the employer applying a rotational mode of operations is allowed to record cumulative hours worked by rotational employees for a certain work performance period.
Article 135.5 of the Labour Code
30. For temporary replacement of an absent rotational employee the employer is allowed to change the working pattern of another employee, subject to the mutual consent of the parties, from a 5-day or 6-day week (as the employment contract provides) to the rotational pattern, provided that the employer compensates the employee’s overtime with the respective time-off.
Article 135.5(2) of the Labour Code
31. The legislator has introduced a new provision stating that the safety and health requirements applicable to remote employees must be adopted by a special normative act of the employer.
Article 138.4 of the Labour Code
32. The employment standards applicable to the chief officer of a company’s executive body likewise apply to all members of a collective executive body, internal audit officers and corporate secretary of a company.
Article 140 of the Labour Code
33. The composition of social partnership has been revised, in particular, from now on, the employer must be represented in such social partnership not by a member of the Kazakhstan National Chamber of Entrepreneurs but by an association/union of employers.
Article 148.3 of the Labour Code
34. The legislator has revised the list of persons not required to initially refer their labour disputes to the conciliation commission as follows:
· employees of micro businesses;
· employees of nonprofit organisations whose staff does not exceed 15 people;
· household employees;
· sole executive bodies of a company, chief officers of the executive body of a company, and other members of the collective executive body of a company; and
· military servicemen, officers of special-purpose government units and law enforcement agencies, and public officers (civil servants).
Article 159.1 of the Labour Code
35. An individual labour dispute may be considered by the conciliation commission in the absence of the claimant subject to the latter’s written consent.
Article 4.2 of the Labour Code
36. The amended Labour Code explicitly provides that a party to an individual labour dispute may seek legal redress not only when the contending parties fail to perform the awards issued by the conciliation commission, but also when the conciliation commission fails to resolve the dispute within the prescribed time limit.
Article 159.7 of the Labour Code
37. The requirement to the training of conciliation commission members has been clarified and simplified. Now it reads that all conciliation commission members must annually get trained in Kazakhstan labour laws and develop their negotiation and consensus-building skills for resolution of labour disputes.
Article 159.8 of the Labour Law
38. Conciliation commission has been granted the authority to reopen the time to file an appeal therewith and to resolve a dispute on the merits when the deadline for filing the appeal has been missed for a good cause the admissibility of which is to be determined by the conciliation commission at their own discretion.
The amended Labour Code sets out the following time limits for appealing to court over the head of the conciliation commission:
· for disputes over reinstatement of employment – three months from the date when a copy of the employer’s order on termination of the employment contract is either delivered by hand or sent by registered mail with return receipt; and
· for other labour-related disputes – one year from the date when the employee (even a former employee) became aware or should have become aware of the infringement of their right.
Since the prior version of the Labour Code did not set out such time limits, they were regulated by Regulatory Statute of the Kazakhstan Supreme Court Concerning Certain Issues of Law Enforcement in Judicial Settlement of Labour Disputes No. 9 of 6 October 2017.
Article 160 of the Labour Code
39. Henceforth, a reinstated employee will be paid full salary for the entire period of their forced unemployment as against an average salary provided for by the prior version of the Labour Code. Moreover, when the employer delays the execution of the reinstatement order it will have to pay a salary to the employee.
Article 161 of the Labour Code
40. When business operations are suspended due to a breach of health and safety regulations, employees are entitled to a full salary rather than an average salary provided for by the prior version of the Labour Code.
Article 181.1(8) of the Labour Code
41. The list of employers’ duties under health and safety laws has been extended with the duty to implement an occupational health and safety management system and to ensure its proper operation.
Article 182.2(18) of the Labour Code
42. The amended Labour Code provides for the rule that when construction operations are performed on a site by two or more contractors at the same time, the general contractor shall be responsible for overall HSE compliance on the site.
Article 184.6 of the Labour Code
43. The legislator has extended the responsibility of HSE services/officers for the deployment of HSE training, briefing and knowledge assessment programs for employees, executives and HSE managers.
The set of elements of an HSE offence has been adjusted accordingly.
Article 202.5(2) of the Labour Code and Article 93.4 of the Code of Administrative Offences